A legal loophole lets public officials get away with violating your constitutional rights if they are the first to do it

A Los Angeles police officer who fired a gun into a crowd of teens after spotting a boy holding a toy gun with an orange tip will be protected by qualified immunity, a panel of judges ruled last week.

The U.S. Court of Appeals for the 9th Circuit ruled Wednesday that even though Officer Michael Gutierrez violated Jamar Nicholson Green’s Fourteenth Amendment rights in 2015 when the triggered cop shot the 15-year-old in the back, “the panel held that because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim."

That essentially means that because there is no other case on file of a clueless cop firing a gun into a crowd of teens after claiming he mistook a toy gun with a bright orange tip for a real gun can get away with their crimes as long as they are the first ones to commit it. On record, of course, because this is hardly the first time a cop shot first and asked questions later.

On February 10, 2015, four teens were hanging out near their school, listening to music and dancing, when chaos erupted. Gutierrez claimed he thought one of the teens, Michael Sanders, was pointing the toy gun at another, Jason Huerta, to potentially “rob” or “murder” the boy so the cop’s sound reasoning led him to start firing into the group.

“Gun, gun, gun!” Gutierrez screamed as he ran out of his partner’s unmarked police car to chase the boys. Neither him nor LAPD officer Everardo Amaral were in uniform either.

Huerta, Green and Abdul Wooten disputed Gutierrez’s claim that he identified himself as a cop or told Sanders to drop the gun before he started shooting.

The cop’s recount of that day didn’t match up with the boys’ again when Gutierrez insisted he only started firing after he stopped running toward them. Huerta and Green say Gutierrez ran while shooting with one hand.

After Amaral caught up to his partner, the two cops held the teens face down at gunpoint, including the suspected victim Huerta, until three units of backup and an ambulance arrived.

It’s “not even a real gun,” Huerta said. “What did we do wrong?”

“The officers remained silent in response to his questions, with dumbfounded expressions on their faces,” the court’s opinion reported.

When backup arrived, the teens were cuffed for over five hours -- even Green while medical assistance examined the gunshot wound on his back.

Green and Huerta, with the help of their guardians, sued Gutierrez, Amaral, the city of Los Angeles, the Los Angeles Police Department and two others.

The district court sided with the boys, agreeing their Fourth Amendment right to be free from unlawful searches and seizures and their Fourteenth Amendment right to due process was violated, but the Appeals Court reexamined its decision.

Guitierrez, who was “involved in the decision to handcuff them,” overstepped his boundaries for keeping the teens handcuffed for that long without probable cause, but he was within his rights to shoot first and ask questions later.

“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” the court’s opinion stated.

In layman's terms, unless you know every single constitutional right you are entitled to and it has already been clearly established in court, a cop or other public official is totally able to legally violate them.

But because lawsuits and lawyers can cost thousands of dollars, unless a victim has a loaded bank account, they may never get the justice they deserve.

Congress passed a law in 1976 that promised lawyers would be paid by the government if they represented clients in civil suits in court. However, when cops throw around qualified immunity and it holds up in court, lawyers don’t get paid a dime so many don’t risk the financial loss to represent poor, marginalized clients.

Qualified immunity’s protection extends so far that a 4-year-old girl was able to be strip-searched and photographed by a social worker without a warrant and a cop was able to force a 17-year-old boy to masterbate in front of him and his colleagues.

In December of 2014, the El Paso County Department of Human Services in Colorado received an anonymous tip that a little girl was being abused. With permission from her supervisor, but not a warrant or even consent from the girl or her mother, April Woodard, a DHS caseworker, went to Oakcreek Elementary School to examine the girl’s butt, stomach and back.

Woodard took the girl to the nurse’s office and despite her objection, the social worker took pictures of girl’s naked body with a county-issued cellphone.

No physical signs of abuse were ever found. But the girl went home that day with emotional trauma.

“I hope she [Woodard] doesn’t come again because I don’t like it when she takes all my clothes off,” the girl said.

Woodard and the girl’s school initially denied the strip search ever happened, but the social worker finally admitted to it a month later after informing the girl’s mom the investigation was a bust.

“The invasive strip search caused I.B. [the pseudonym used for the girl] to suffer trauma similar to that suffered by children who are sexually abused,” the court’s report stated.

Despite the obvious trauma and violation of privacy, the Tenth Circuit Court decided the social worker’s assault was protected because the strip search didn’t violate any “clearly established law.”

A 17-year-old boy in Virginia was accused of producing child pornography in 2014 when he consensually “sexted” a video of himself to his 15-year-old girlfriend. His girlfriend’s mom came across the video and filed a complaint.

“The prosecutor’s job is to seek justice,” said the teen’s defense lawyer, Jessica Harbeson Foster. “What is just about this? How does this advance the interest of the Commonwealth? This is a 17-year-old who goes to school every day, plays football, has never been in trouble with the law before. Now he’s saddled with two felonies and the implication that he’s a sexual predator. I don’t mind trying the case. My goal is to stop the search warrant. I don’t want him to go through that. Taking him down to the hospital so he can get an erection in front of all those cops, that’s traumatizing.”

The teen’s lawyer was told, “we just take him down to the hospital, give him a shot and then take the pictures that we need,” but they soon found out that was a lie.

Abbott and two other cops took the teen into a juvenile detention center and told him to pull down his pants. They needed pictures of his erection to compare his penis to the one in the video sent to his girlfriend, in an effort to incriminate the teen.

Carlos Flores Laboy, appointed the teen’s guardian ad litem in the case, said he thought it was just as illegal for the Manassas City police to create their own child pornography as to investigate the teen for it.

“They’re using a statute that was designed to protect children from being exploited in a sexual manner,” Flores Laboy said, “to take a picture of this young man in a sexually explicit manner. The irony is incredible.” The guardian added, “As a parent myself, I was floored. It’s child abuse. We’re wasting thousands of dollars and resources and man hours on a sexting case. That’s what we’re doing.”

The 4th Circuit Court of Appeals overturned a lower court's ruling that granted qualified immunity to Abbott -- two years after the detective killed himself right before being arrested for allegedly molesting two boys he met and three years after the 17-year-old boy’s life changed forever.

Qualified immunity’s place in the United State’s legal system has been questioned by Supreme Court judges Clarence Thomas and Sonia Sotomayor who called it a “‘shoot first, think later’ approach to policing.”

During the second night of the second round of Democratic debates, presidential candidate Julian Castro said, “we need to have a standard and that we end qualified immunity for police officers so we can hold them accountable.”

Comments (8)

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No. 1-7

David Saint

Aug 28

only cops can claim ignorance of the law to escape responsibility for their actions...let that irony sink in. The very people entrusted to uphold the law get a mulligan by simply claiming ignorance of the law.

NonyaFknB

Aug 28

They, and the courts, know exactly what they are doing. They have went from protect and serve to occupy. From peace keepers to debt collectors.